Unjust Bust

Elderly Couple Sues After SWAT Team Raids Their Home.

DOE-EYED AND SERENE, the Virgen de Guadalupe is said to be fond of protecting the poor, the abused, the downtrodden. In places like the Old Pascua Yaqui Village, a remote pocket of poverty in the heart of Tucson, such bias means plenty of side work.

It's little coincidence, then, that Guadalupanismo is rampant here, that her calming visage seemingly fills every bare nook, every empty cranny. She dangles from car mirrors and peeks from key chains. She's hammered onto fence posts, painted on walls, and, in the home of Eduardo and Maria Martinez, pressed between a thick frame overlooking a busy shrine of plastic flowers and devotional candles atop a thin wooden stand.

Today, from a spot on the couch, Maria Martinez can easily see her saint. Through an enormous window dissected by long cracks and brown packing tape, she can also see her dusty yard, where it all began.

It was there, in the dark hours of December 1, 1998, that the vaunted Virgen -- despite her reputation -- suddenly found herself a tad shorthanded.

Toting an arsenal of weapons and an informant's tip, a SWAT team flooded into that yard, just before exploding through the family's front door, and leaving Maria Martinez with a cracked pelvis, a broken wrist, and a very fractured sense of security.

Earlier that day, TPD Officer Greg Roberts had obtained a search warrant from Judge Deborah Bernini for the raid. He cited a "confidential informant" who went to the residence, "where the confidential informant purchased heroin from a subject by the name of [deleted], an Indian male who resides at this residence."

While making the score, the snitch reported seeing more heroin "inside the residence, and from past experience with this residence, the confidential informant stated that the heroin dealing goes on until 11 p.m. every night."

Later, as they began their charge, SWAT cops reported that Eduardo Martinez attempted to push the door closed on them. That's when Officer Robert Callan tossed a distraction bomb into the front room, and the team rushed through behind him. In the ensuing melee, Eduardo Martinez, his wife Maria, and their daughter-in-law landed in a pile on the floor.

Either she was pushed, or she just fell. But either way, Mrs. Martinez was quickly eating concrete. She was held face down on the hard floor, in handcuffs, while police searched the rest of the home, which included blasting through a bedroom door.

According to testimony in a TPD internal affairs report, police did catch Sixto Matus standing next to a single stick cigarette case "used to hold heroin," and carrying heroin wrapped in tin foil.

Attorney Paul Gattone, who was referred to the Martinez case by a Yaqui social services official, says Matus was busted on a broad public thoroughfare far beyond the family's fenced yard, and neither lived in the house, nor was a relative.

By all accounts, there's no shortage of such folks in the village.

But inside the home, the cops found no paraphernalia, no cash, no drugs -- nothing but a pair of elderly Yaquis, their son and daughter-in-law, four grandchildren and four infant great-grandchildren.

For the Martinez family, it was deja-vu all over again: they were also raided in 1997, when cops arrested a transient inhabiting a patchwork shed in the corner of their congested yard, reportedly for heroin possession. Again, police found nothing in the house.

"The Martinez's didn't know anything about the guy living in that shed," Gattone says. "There are just lots of poor people here, and they were letting the guy sleep out there. And now this time, they arrested an individual who wasn't even on the Martinez property. Again, they found absolutely nothing inside the home linking these people to drugs, and Mrs. Martinez is left with a broken wrist and pelvis for her trouble."

THERE'S NO DENYING that SWAT team raids can be a nasty, risky business, and that their members constantly make snap, life-or-death judgments on typically hostile turf.

But the tactic also includes a great potential for abuse. If one's home is invaded not once but twice, with no cascade of evidence when the dust clears, and particularly when an old lady is roughed up in the process, then just who exactly is safe?

Well, prosperous Anglos are, says Gattone. He thinks that SWAT teams typically target minorities, though he doesn't have hard numbers to back his claim. But it is true that SWAT invasions -- whether they uncover big drug stashes or not -- hold little repercussions for the cops. Unless, of course, they mistakenly target families with the clout to fight back.

Case in point: Police made a major blunder when they raided the home of Mary Gekas and her family in the summer of 1993, while tracking a drug dealer who actually lived next door. A prominent local business family, the Gekas clan had deep enough pockets to give the department hell. The result? An $82,000 reward to the family for "severe personal injuries" and "substantial emotional trauma."

Hard to imagine the Martinez family winning such a battle. But Gattone, who runs the non-profit Southern Arizona People's Law Center, is shooting for the top. In May, he filed a $12 million damage claim against the city. In June, Tucson's Risk Management Division denied the claim, citing "no negligence or liability on behalf of the city."

Terry Anderson, Risk Management director, says his decision was based on TPD's internal affairs report. "There seems to be a dispute over how (Maria Martinez's) hip was injured," he says. Besides, "There was no question that this was headed for litigation. I think whoever was right and whoever was wrong, it will come out in court."

Gattone has meanwhile filed suit in Federal District Court, citing civil rights violations against the Martinez family. Calling it "a blatant abuse," in his lawsuit, Gattone says the " 'War on Drugs' was again used to excuse an attack on fundamental rights."

For his part, Eduardo Martinez -- a frail, retired county sanitation worker who so forcefully tried to keep his front door shut -- was born minus part of his left arm. Maria Martinez suffers from glaucoma and diabetes.

Mr. Martinez is 73; his wife is 71.

He says he was watching TV on the night of the assault, when he heard what sounded like a fight outside. Thinking his 15-year-old grandson might be involved in a scrap, he says he was reaching for the door when it burst open and he was thrown to the floor. Mrs. Martinez says she was making tortillas in the kitchen when the ruckus drew her to the living room.

Before she knew what happened -- and speaking volumes about SWAT team efficiency -- she was facedown on the floor in a pair of flex-cuffs.

Today, she uses a walker, and constantly rubs her swollen wrist. A TV crackles in the background, flashing the howdy-do grin of Andy Griffith, another cop from a far different era.

Eduardo Martinez is missing several teeth, and his words roll out like lopsided marbles. But his anger is sharp. He points with intended irony to a Fraternal Order of Police sticker on a tall, thin window alongside the door.

"They treated us like criminals," he says. "We didn't do anything to break the law."

Apparently, that treatment didn't stop in the emergency room at St. Mary's Hospital, where, in TPD's internal affairs report, a physician described Maria Martinez's injuries as "fairly severe, especially for someone her age."

Under questioning, the doctor was asked whether her "wrist deformity" could be the result of an old fracture.

The doctor flatly replied, "No."

Back in the Martinez home, the benevolent Virgen gazes down upon the rows of lit candles. Like Maria Martinez, her palms are pressed together, as comforting sunlight dances across her tempered face.